Joe C. Purl, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southwest Area), Agency.

Equal Employment Opportunity CommissionSep 11, 2000
01971894 (E.E.O.C. Sep. 11, 2000)

01971894

09-11-2000

Joe C. Purl, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southwest Area), Agency.


Joe C. Purl v. United States Postal Service

01971894

September 11, 2000

.

Joe C. Purl,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southwest Area),

Agency.

Appeal No. 01971894

Agency No. 1-H-391-1026-94

DECISION

Complainant timely initiated an appeal from a final agency decision (FAD)

concerning his equal employment opportunity (EEO) complaint of unlawful

discrimination based on race (White), sex (male), age (DOB: 1/12/51),

and physical disability (muscular dystrophy), in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).<2> For the following reasons,

the FAD is AFFIRMED IN PART and REVERSED IN PART.

ISSUES PRESENTED

The issues on appeal are whether the agency discriminated against

complainant on any of the above-cited bases when: (1) the agency delayed

granting his request for a temporary light-duty assignment; and (2) he was

required to take a fitness-for-duty (FFD) examination at his own expense.

BACKGROUND

The record reveals that complainant, a mailhandler at the agency's

General Mail Facility in Jackson, Mississippi, submitted medical

information from his personal physician indicating that he was unable to

perform his duties from February 25, 1994 through April 7, 1994, due to

complications associated with his muscular dystrophy. On or about March

21, 1994, complainant submitted a request for temporary light duty to

begin April 8, 1994. The request was accompanied by documentation from

complainant's personal physician stating that while complainant could

return to work as of April 8, 1994, he would be subject to the following

medical restrictions: no climbing, kneeling, or reaching above the

shoulder; no lifting or carrying in excess of twenty pounds; maximum

four hours per day standing, walking, bending/stooping, or twisting;

and maximum two hours per day pulling/pushing.

By letter dated April 16, 1994, the Senior Safety Specialist (SS) advised

complainant that because his physician had described his condition

as "indefinite/chronic" on the light duty request form, complainant's

options were either to request permanent light duty in accordance with his

collective bargaining agreement, or to request disability retirement. The

agency apparently regarded this communication as a denial of complainant's

initial request for temporary light duty. See Record of Investigation

(ROI), Affidavit C at A-13. According to the SS, she then spoke with

complainant by telephone on April 19, 1994, and explained that requests

for permanent light duty must be accompanied by medical documentation

from a doctor chosen by the agency,<3> whose name she provided. She

also informed complainant that such documentation must be obtained at

the expense of the employee requesting accommodation. ROI, Affidavit

C at A-5.b. Based on these communications, the SS claims the agency

"didn't send [complainant] for an FFD," but rather "requested medical

documentation." Id. at A-22.

Complainant subsequently obtained an examination from the agency's

designated physician, who concurred with complainant's personal

physician's assessment that complainant could return to work consistent

with the medical restrictions outlined in his temporary light duty

request. At the same time, complainant submitted to the agency an

additional medical form from his personal physician with a revised

"expected duration" of six months for the symptoms at issue, which the

agency apparently construed as a second request for light duty. See

ROI Exhibit 13; Affidavit A at A-33. By letter dated June 9, 1994,

complainant was granted temporary light duty from June 9, 1994 through

July 7, 1994. See ROI Exhibit 14.

Complainant filed a formal EEO complaint on August 22, 1994, alleging

that the agency had discriminated against him as referenced above.<4>

At the conclusion of the investigation, complainant was provided with a

copy of the investigative report. Complainant requested a hearing before

an Equal Employment Opportunity Commission (EEOC) Administrative Judge

(AJ), but then withdrew the request. The agency's FAD found no race,

sex, or age discrimination, concluding that complainant was not treated

differently than similarly-situated applicants for light duty. With

respect to complainant's disability discrimination claim, the FAD

concluded that any delay in granting complainant's request for light

duty did not constitute a denial of reasonable accommodation because

"[p]roviding [complainant] with a temporary light duty assignment when it

was unsure of [his] condition could have possibly resulted in the agency

being held liable for any injury [complainant] might have sustained due

to the work [he was] assigned."

On appeal, the agency stands on the record and requests that the

Commission affirm its FAD. Complainant has not submitted any contentions

on appeal.

ANALYSIS AND FINDINGS

Based on a careful review of the record, we find that the agency

correctly concluded complainant has not established race, sex, or

age discrimination, for the reasons set forth in the FAD. However,

as explained below, we further find that the agency violated the

Rehabilitation Act when it failed to afford complainant a light-duty

assignment between April 8, 1994 and June 9, 1994, and when it required

him to pay for his FFD examination.

The FAD found that complainant was an "individual with a disability"

within the meaning of the Rehabilitation Act, but did not address whether

or not complainant is a "qualified individual with a disability." We

review both questions as a threshold matter, and conclude that complainant

satisfies the relevant standard.

As the agency concedes, FAD at 7, complainant is an "individual with

a disability." The undisputed evidence establishes that at the time he

requested accommodation, complainant had significant physical impairments

as a result of his muscular dystrophy which, inter alia, substantially

limited his ability to care for himself. Specifically, in his March 21,

1994, letter in support of complainant's light duty request, complainant's

physician stated:

[Complainant] has a history of muscular dystrophy, primarily involving

the shoulder and hip girdle musculature. This has caused a progressive

muscular wasting and weakening to the point where he is having difficulty

performing his usual daily activities, including feeding and dressing

himself and taking care of his personal needs.

ROI Exhibit 4; see also Exhibits 5 (medical certificate for return to

work April 8, 1994) and 6 (light duty request form). Further, complainant

is a "qualified" individual with a disability because at the time of

the requested accommodation he could perform the essential functions

of his position with accommodation. Complainant attests that when the

agency finally permitted him to return to work on June 9, 1994, he was

able to and did perform his duties, while sitting four hours per day

(ROI Affidavit A at A-40), and the manager of processing does not dispute

this (ROI Affidavit B at A-19). See also ROI Exhibit 14. Accordingly, we

conclude that complainant is a "qualified individual with a disability"

under the Rehabilitation Act, and was therefore entitled to reasonable

accommodation absent undue hardship to the agency.<5>

Delay in Providing Light Duty

Based on our review of the record, we conclude that the agency's

two-month delay in granting light duty to complainant constitutes a

denial of reasonable accommodation. The SS asserts that when submitting

his March 21, 1994 request for temporary light duty, complainant "used an

obsolete form . . . Rather than delay the process, the form was processed

[as a request for permanent light duty.]" ROI Affidavit C at A-13. The

SS states that the request, construed as one for permanent light duty,

was denied because "[d]ue to the heavy nature of mail handler work,

and standing required, [the manager] stated that no mail handler duties

were available for indefinite-chronic duration within [complainant's]

restrictions." ROI Affidavit C at A-12. see also Exhibit 6. To the extent

the agency thus contends that complainant's initial request for temporary

light duty was denied because his doctor's assessment made it appear

that his condition was permanent rather than temporary, the agency

cannot avoid its accommodation obligations under the Rehabilitation

Act in this manner. Requests for accommodation do not need to be in

any particular form in order to trigger the employer's obligation under

the ADA to commence the interactive process of clarifying and assessing

the request. See EEOC Enforcement Guidance on Reasonable Accommodation

and Undue Hardship under the Americans With Disabilities Act, Number

915.002 (March 1, 1999) questions 2, 3, 5. Notwithstanding a generalized

assertion in the SS's affidavit that no "permanent" light duty position

was available, the agency has provided no explanation of why complainant

was not provided with a temporary light duty position at the time of his

initial request, pending a determination regarding whether permanent

light duty was available. The manager of district operations attested

that the manager of processing "did ask me if light duty was available

on tour three and I told him the heavy hammer operator or traying BBM

letters." ROI, Affidavit H at A-4. Complainant was on tour one. Id

. Although the agency asserts that the collective bargaining agreement

limited light duty assignments to those within an employee's own craft,

the record reveals that the union president wrote on complainant's

initial temporary light duty request form that "[t]here is (sic) light

duties assignment for the mailhandlers craft as any other craft." ROI

at Exhibit 6. The record contains no evidence regarding whether or not

complainant was qualified to perform these light duty positions. Moreover,

the record contains no objective evidence to demonstrate that the agency

actually conducted a search for vacant positions, whether light duty

or otherwise, at other facilities to which complainant could have been

reassigned. See Flowers v. United States Postal Service, EEOC Appeal

No. 0198487 8 (September 9, 1999); Lowery v. United States Postal Service,

EEOC Appeal No. 01961852 (October 31, 1997).

Further, to the extent the agency contends that complainant's initial

request for light duty was denied because he was seeking light rather than

limited duty, this distinction has no bearing on the agency's duties under

the Rehabilitation Act.<6> "[A]n employer may not avoid its obligation

to accommodate an individual with a disability simply by asserting that

the disability did not derive from occupational injury." Bradley v. United

States Postal Service, EEOC Appeal No. 01962747 (October 22, 1998) (citing

EEOC Enforcement Guidance on Workers' Compensation and the ADA (September

3, 1996)). While the Rehabilitation Act does not require an employer

to create a light duty position as an accommodation, it does require an

employer, absent undue hardship, to accommodate a qualified individual

with a disability by restructuring a position through redistribution

of marginal functions which he cannot perform because of disability,

or by reassigning him to an equivalent existing vacancy for which he

is qualified. Id. ; see also Ignacio v. United States Postal Service,

EEOC Petition No. 03840 005 (September 4, 1984), aff'd, 30 M.S.P.R. 471

(Spec. Pan. February 7, 1986). "If an employee with a disability who

is not occupationally injured becomes unable to perform the essential

functions of his/her job, and there is no other effective accommodation

available, the employer must reassign him/her to a vacant reserved light

duty position as a reasonable accommodation if (1) s/he can perform its

essential functions, with or without reasonable accommodation; and (2)

the reassignment would not impose an undue hardship." EEOC Enforcement

Guidance on Workers' Compensation and the ADA (September 3, 1996) at

question 28.

Finally, the FAD erroneously concluded that the agency acted "within

the bounds of reasonableness" in denying complainant's initial light

duty request because his physician's letter in support of the request

stated that the "type of activity [complainant] is performing at work

is aggravating his symptoms of muscular dystrophy and has created a

situation where he has a great deal of difficulty maintaining any type

of consistent physical activity." ROI at Exhibit 4, page 2. The FAD

found that based on this information, the agency could request "that

[complainant] provide additional information in order to clarify [his]

medical restrictions in order to determine exactly what type of light-duty

assignment was appropriate," and also that "[p]roviding [complainant] with

a temporary light duty assignment when it was unsure of [complainant's]

condition could have possibly resulted in the agency being held liable

for any injury [complainant] might have sustained due to the work [he]

was assigned."

To the contrary, the record establishes that the sole reason complainant's

light duty request was initially denied was that purportedly no light

duty positions were available for someone with an indefinite condition,

rather than because of a concern about whether complainant was fit

for duty. See ROI Affidavit C at A-12 and A-13; Affidavit B at A-9

and A-10. There is no evidence that the relevant management officials

denied complainant's initial light duty request because of uncertainty

regarding whether he could safely perform his duties. Moreover, the

record contains no evidence demonstrating that the agency conducted the

requisite individualized assessment, or that a light duty position posed

any risk of particular injury. See Kahout v. United States Postal Service,

EEOC Appeal No. 01954900 (June 19, 1997). Therefore, the agency has not

met its burden to demonstrate that the delay in providing complainant

light duty was warranted.

Fitness for Duty Examination

As noted above, complainant's request for light duty constituted a request

for reasonable accommodation under the Rehabilitation Act. The agency's

position is that a review by the agency's physician of choice was required

in order to process complainant's light duty request, and that "when an

employee provides requested medical documentation to support absence or

accommodation, it is at [the] employee's expense." ROI Affidavit C at

A-8.

An employer may require "an individual to go to an appropriate health

professional of the employer's choice if the individual provides

insufficient information from his treating physician (or other health

care professional) to substantiate that he has a disability and needs a

reasonable accommodation." See EEOC Enforcement Guidance on Reasonable

Accommodation and Undue Hardship under the Americans With Disabilities

Act, Number 915.002 (March 1, 1999) at question 7. However, "[i]f an

employer requires an employee to go to a health professional of the

employer's choice, the employer must pay all costs associated with the

visit(s)." Id . Thus, even assuming arguendo that the agency properly

could require complainant to attend an examination by its chosen health

professional in these circumstances, the agency erred in requiring

complainant to pay for the examination at issue.

CONCLUSION

Accordingly, after a careful review of the record, including arguments and

evidence not discussed in this decision, the FAD is affirmed with respect

to the finding of no race, sex, or age discrimination, but is reversed

with respect to complainant's claim of disability discrimination. Based on

the foregoing analysis, we hereby find that complainant was discriminated

against based on disability. The agency is ORDERED to provide the relief

specified below.

ORDER

The agency is ORDERED to take the following remedial action:

1. Within thirty (30) calendar days of the date this decision becomes

final, if complainant remains employed by the agency, the agency shall

restore to complainant all leave used from April 8, 1994 through June 9,

1994, and any other attendant benefits lost during that time period. In

the alternative, if complainant is no longer employed by the agency, the

agency shall provide complainant back pay, with interest, for the period

April 8, 1994 through June 9, 1994, and shall additionally compensate

complainant for any other attendant benefits lost during that time

period.

2. Within thirty (30) calendar days of the date this decision becomes

final, the agency shall reimburse complainant one hundred dollars ($100)

for the cost of the medical examination, plus interest from the date of

payment (May 20, 1994) until the date of reimbursement.

3. The agency shall conduct a supplemental investigation pertaining to

complainant's entitlement to compensatory damages incurred as a result

of the agency's discriminatory actions in this matter.<7> The agency

shall afford complainant sixty (60) days to submit additional evidence

in support of his claim for compensatory damages. Within thirty (30)

days of its receipt of complainant's evidence, the agency shall issue

a final decision determining complainant's entitlement to compensatory

damages, together with appropriate appeal rights.

4. The agency shall provide training to all the management officials

responsible for this matter in their duties and obligations under the

Rehabilitation Act.

5. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due complainant,

and the agency's decision regarding compensatory damages, including

evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its General Mail Facility in Jackson

Mississippi, copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty

(60) consecutive days, in conspicuous places, including all places

where notices to employees are customarily posted. The agency shall take

reasonable steps to insure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer at the address cited in the paragraph

entitled "Implementation of the Commission's Decision," within ten (10)

calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H1199)

If complainant has been represented by an attorney (as defined by

64 Fed. Reg. 37,644, 37,659-60 (1999)(to be codified and hereinafter

referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to

an award of reasonable attorney's fees incurred in the processing of the

complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall

be paid by the agency. The attorney shall submit a verified statement of

fees to the agency - not to the Equal Employment Opportunity Commission,

Office of Federal Operations - within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory. The

agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report

shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. �1614.503(a). The complainant also has

the right to file a civil action to enforce compliance with the

Commission's order prior to or following an administrative petition

for enforcement. See 29 Fed. Reg. 37,644, 37,659-60 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. ��1614.407, 1614.408)

and 29 C.F.R. �1614.503(g). Alternatively, the complainant has the

right to file a civil action on the underlying complaint in accordance

with the paragraph below entitled "Right to File A Civil Action." 29

C.F.R. ��1614.407 and 1614.408. A civil action for enforcement or a

civil action on the underlying complaint is subject to the deadline

stated in 42 U.S.C. �2000e-16(c)(Supp. V 1993). If the complainant

files a civil action, the administrative processing of the complaint,

including any petition for enforcement, will be terminated. See 29

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION.See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9 -18 (November 9,

1999). All requests and arguments must be submitted to the Director,

Office of Federal Operations, Equal Employment Opportunity Commission,

P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible

postmark, the request to reconsider shall be deemed timely filed if it

is received by mail within five days of the expiration of the applicable

filing period. See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified

and hereinafter referred to as 29 C.F.R. �1614.604). The request or

opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. �1614.604(c).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action in

an appropriate United States District Court WITHIN NINETY (90) CALENDAR

DAYS from the date that you receive this decision on both that portion

of your complaint which the Commission has affirmed AND that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action AFTER

ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your

complaint with the agency, or your appeal with the Commission, until such

time as the agency issues its final decision on your complaint. If you

file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE

PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING

THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE. Failure to

do so may result in the dismissal of your case in court. "Agency" or

"department" means the national organization, and not the local office,

facility or department in which you work. If you file a request to

reconsider and also file a civil action, filing a civil action will

terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court

appoint an attorney to represent you and that the Court permit you to

file the action without payment of fees, costs, or other security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e

et seq .; the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791,

794(c). The grant or denial of the request is within the sole discretion

of the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

September 11, 2000

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated ________ which found that a

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq., has occurred at the United States

Postal Service's General Mail Facility in Jackson, Mississippi.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment.

The facility supports and will comply with such Federal law and will

not take action against individuals because they have exercised their

rights under law.

The facility was found to have unlawfully discriminated against

the individual affected by the Commission's findings on the basis of

disability, when the agency failed timely to accommodate him by assignment

to a light duty or other position, and when it required him to pay for

a fitness of duty examination. The agency shall therefore remedy this

discrimination by providing this individual with reinstatement, back pay,

and restoration of other attendant benefits. The agency will also provide

compensatory damages if proven, will ensure that officials responsible

for personnel decisions and terms and conditions of employment will abide

by the requirements of all Federal equal employment opportunity laws.

The facility will not in any manner restrain, interfere, coerce,

or retaliate against any individual who exercises his or her right to

oppose practices made unlawful by, or who participates in proceedings

pursuant to, Federal equal employment opportunity law.

______________________________

Date Posted: ___________________

Posting Expires: _______________

29 C.F.R. Part 1614

FOOTNOTES

Footnote 3

Footnote 4

Footnote 5

Footnote 6

Footnote 7

1The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

3The collective bargaining agreement provides in pertinent part that

a request for permanent light duty shall be accompanied by a medical

certificate from a physician designated by the agency. Id. at Exhibit 7.

4Although complainant's request for permanent light duty was subsequently

denied, complainant's formal complaint does not challenge this action,

but rather only challenges the delay in granting his request for

temporary light duty, and the fact that he was required to pay for his

FFD examination. Accordingly, we are not presented with the issue of

whether or not the agency violated the Rehabilitation Act in denying

complainant's request for permanent light duty.

5Even if complainant was unable to perform the essential functions of

his then-current position, he would still be "qualified" if, with or

without accommodation, he could perform the essential functions of any

position which he could have held as a result of job restructuring or

reassignment. See Hawkins v. United States Postal Service, EEOC Petition

No. 03990006 (February 11, 1999).

6The SS asserts that "[l]imited duty is provided for workers on the

job, whereas light duty is for employees unable to perform duties due

to non-job related conditions. Work provided under light duty must be

within the craft and must be productive work." ROI Affidavit C at A-9.

7The Commission notes that this is not a case where the agency made

a "good faith effort" to reasonably accommodate complainant, thereby

insulating it from an obligation to award appropriate compensatory damages

based on the instant finding of discrimination under the Rehabilitation

Act. See Teshima v. United States Postal Service, EEOC Appeal No. 01961997

(May 5, 1998).